Sheet Metal Workers' International Association, Local 565, hereinafter referred to as
the Union,
and BouMatic, hereinafter referred to as the Company or Employer, are parties to a
collective bargaining
agreement that provides for final and binding arbitration of grievances. Pursuant to the
parties' request, the
Wisconsin Employment Relations Commission appointed the undersigned to decide the Sami
Berisha
discharge grievance. A hearing was held on December 7, 2012 in Madison,
Wisconsin, at which time the
parties presented testimony, exhibits and other evidence that was relevant to the grievance.
The hearing
was not transcribed. The parties filed briefs and reply briefs, whereupon the record was
closed on
February 7, 2013. Having considered the evidence, the arguments of the parties, the
applicable provisions
of the agreement and the record as a whole, the undersigned issues the following Award.

7852

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ISSUES

The parties stipulated to the following issues:

1. Whether the Employer terminated the grievant's employment
with just cause?

2. If the Employer did not terminate the grievant's employment
with just cause, then
what is the appropriate remedy?

Call-In Pay. An employee notified to work after having left the Company premises
shall
receive no less than two (2) hours' work or two (2) hours' pay at the applicable rate. This
provision shall also apply to Saturday, Sunday, or holiday overtime.

. . .

Article XVI ­ Discipline and Termination

Section 16.01, Subsection 323(j)

These rules in no way limit the Company's right to otherwise discipline or discharge
an
employee for just cause.

. . .

Section 16.02 Subsections 324 ­ 329

324. Disciplinary Action for Minor Offenses: For the purposes of
this Section, typical
examples of minor offenses are excessive absenteeism or tardiness, unexcused
absenteeism, or tardiness, quitting work early, being away from assigned work
area without permission, horseplay in which no injury results and lining up early at
time clocks. Disciplinary

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action imposed on an employee by the Company for commission of a minor
offense shall be handled in the following manner:

325. First offense: Recorded verbal warning.

326. Second offense: Formal letter of warning to the employee
and a copy to
the Union.

327. Third offense: Three (3) day disciplinary layoff,
without pay; a letter to
the employee and a copy to the Union giving the reason(s) for the action taken.
A Union Committee person, if available, will be present in this meeting.

328. Fourth offense: Termination of employment; a letter to the
employee and a copy
to the Union giving reason(s) for the action taken. A Union Committeeperson, if
available, will be present in this meeting.

329. The parties to this Agreement recognize that multiple minor
offenses, if committed
simultaneously or in close proximity to another minor offense(s), may create a
situation in which a penalty may be applied by the Company without the
requirement of following the sequential steps provided above.

. . .

Article XX ­ Management Rights ­ Plant
Rules

Section 20.01, Subsection 343

It is agreed that the management of the Company and its business and the direction of
its
working forces is vested exclusively in the Company and this includes, but is not limited to,
the following. . . [to] suspend, discipline, or discharge employees for just cause;. . .and to
establish and enforce reasonable plant rules.

. . .

Subsection 346

The Company's exercise of the foregoing functions shall be limited only by the
express
provisions of this contract and the Company has all the rights which it had at common law
except those expressly bargained away in this agreement and except as limited by statute.

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. . .

PERTINENT COMPANY PLANT
RULES

. . .

To that end, the company sets forth its established Plant Rules, which, together with
observing all other standards of conduct, employee are required to obey.

An employee who fails to maintain proper standards of conduct at all times and who
violates any of the following shall subject him/herself to disciplinary action up to and
including discharge.

. . .

IV. Personal Conduct

42. Employees must be "hand screened in" and at their designated
place of work,
ready to work, at their scheduled starting time.

43. At the conclusion of their lunch period or break period,
employees are to promptly
report back to their assigned workstation and resume working.

. . .

46. Except for lunch periods, break periods, visits to washrooms,
and visits to the
closest drinking fountain, or when assigned duties that require an employee being
away from his/her workstation, an employee shall not leave his/her workstation
without permission from his/her supervisor.

47. Employees are expected to be at their station working up to the
time the buzzer
sounds. However, the last 5 minutes of an employee's shift may be used, if
necessary, to put away tools, clean up the work area, prepare the work station for
transition the employees on the next shift, or to take care of production related
paper work and time keeping records.

. . .

52. An employee shall not falsify any reports or records including
production,
personnel, timekeeping, absence, sickness, injury or insurance claims.

. . .

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PERTINENT COMPANY POLICY

ABSENTEE POLICY

. . .

NOTE: Plant Rule #42 states: Employees must be "hand
scanned in" and at their
designed (sic) places of work, ready to work, at their scheduled starting time." Two
instances of no punch or forgotten punch in a rolling calendar year will be considered
acceptable. More than two will result in ½ occurrence if less than 2 hours or 1 full
occurrence if 2 hours or more.

. . .

BACKGROUND

The Company is engaged in the business of design, manufacture, and supply of
milking systems and
dairy farm equipment. The Union is the exclusive collective bargaining representative for
some of the
Company's employees at the Company's Madison manufacturing facility.

The record shows that the Company requires all bargaining unit employees to
accurately record
their actual hours worked on a daily basis using the Company's electronic timekeeping
system. Employees
do this by punching-in and punching-out on an electronic timekeeping system. (Technically,
employees
don't punch or clock in and out anymore ­ rather they scan in and out ­ but the
old terms punch and clock
are still used). The record further shows that there is never an occasion when it is
appropriate or allowable
for an employee to record more hours than the employee actually worked.

The Company avers that it has a "zero tolerance" policy for dishonesty and/or theft
which is
reflected in Plant Rule 52. When employees have been caught engaging in a single instance
of what the
Company considers to be dishonesty and/or theft, they have been summarily fired without
any progressive
discipline. In the last decade or so, that's happened at least seven times. In all seven of the
following
instances, the bargaining unit employee was fired. In one instance, the employee accepted a
pre-punched
time card. In another instance, the employee took aluminum scrap from a scrap bin. In
another instance,
the employee slept on the job. (The Employer considered that "theft of time"). In another
instance, the
employee had an inaccurate time card. (The Employer considered that "stealing time"). In
another
instance, the employee took a Company bumper sticker and put it on his car's bumper. The
value of the
sticker was less than $1.00. In another instance, the employee took copper tubing. In
another instance,
the employee took a package of napkins. The value of the napkins was less than $10. While
the Union
grieved some of these discharges, it was not successful in getting any of them overturned.
Insofar as the
record shows, the Company has been uniform in applying Plant Rule 52 and firing anyone
who engages
in even a single instance of dishonesty and/or theft.

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The Company has two maintenance electricians on the first shift and two on the
second shift.
Based upon the nature of their work, maintenance electricians hold a special position of trust
in that they
work without a lot of direct supervision. They regularly have to come in to work outside
their normal work
schedule to address maintenance issues, including checking the pipes and boilers on
weekends in cold
weather.

When the maintenance electricians do come into work on the weekends to check the
pipes and
boilers, they are generally there for just a half hour. Although they are there for just a half
hour, employees
are expected to follow the same timekeeping procedures on weekends as they follow Monday
through
Friday. Thus, maintenance electricians are expected to clock in, check the boilers, and then
clock out.
This process records their actual hours worked. These employees though are not paid for
just their actual
hours worked. Instead, pursuant to a call-in pay provision in the collective bargaining
agreement, they are
paid two hours pay. This call-in pay is not self-implementing, meaning somebody has to do
something to
ensure that the employee gets the call-in pay. What happens is that the maintenance
supervisor reviews
the time cards, and if an employee is entitled to call-in pay, he makes an entry that says the
employee is
entitled to two hours of call-in pay (even though the employee actually worked less than two
hours). When
this happens, the employee's pay is adjusted upward. There are no instances in the record
where the
converse occurred and an employee's pay was adjusted downward.

. . .

The record indicates that in 2004, the Company inadvertently overpaid bargaining
unit
employee
Tim Dobratz $300. While it is unclear from the record how or why this overpayment
occurred, it is clear
that Dobratz did not cause it or have anything to do with the overpayment. He was unaware
of the
overpayment until he was called into a meeting and asked about it. Afterwards, Dobratz
reimbursed the
Company for the overpayment. Dobratz was not disciplined for the overpayment.

FACTS

Sami Berisha, the grievant herein, was employed by the Company as a full-time
maintenance
electrician until his discharge on September 6, 2012. This case involves his discharge.

Berisha is originally from Kosovo, and his native language is Albanian. He
immigrated from
Kosovo to America in 1999. By his own admission, his speaking of the English language is
"not very
good." Additionally, he cannot read English. He settled in Madison and was hired by the
Company in
1999. This is the only job he's held since he came to America.

Prior to the incident involved herein, Berisha had never been disciplined for any
reason. Thus, he
had a clean disciplinary record. As an experienced employee, Berisha knew the Company's
rules and
regulations. He also knew that the Company fires employees for

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dishonesty and theft. He also knew how to record his actual hours worked. Prior to
the incident involved
here, he's never had a problem with recording his actual hours worked on the Company's
timekeeping
system.

On Saturday, August 25, 2012 (all days hereinafter refer to 2012), a masonry
contractor was
scheduled to perform some work on the Company's premises. The Company was closed that
day, so
someone needed to unlock the Company's locked parking lot gate to let the contractor in to
perform the
work. Maintenance Supervisor Ron Gadow originally asked Maintenance Group Leader
Charles
Cushman to do the work, and Cushman said that he would. Later, though, Cushman
discovered that he
had another commitment that he wanted to attend, so on August 24, with Gadow's
permission, Cushman
asked Berisha if he would perform that Saturday overtime work. Berisha said that he would.
While
Berisha had come in to the Company's facility numerous times before on winter weekends to
check on the
pipes and boilers, he had never come in before to let a contractor in and out of the
Company's facility.
Cushman then gave Berisha the following instructions. He told Berisha that when the
contractor called him
on his cell phone, he was to come in to work, unlock the locked parking lot gate and let the
contractor into
the Company's facility. Then, he could leave the Company's facility and go home while the
contractor did
the work he was hired to do. When the contractor finished his work, he'd call Berisha,
whereupon Berisha
was to return to the Company's facility and let the contractor out of the parking lot and lock
the parking
lot gate. Then, Berisha could leave. Cushman reiterated that the parking lot needed to be
locked while
the contractor was working inside because the Company has in recent times been targeted by
thieves
looking to steal scrap metal. Cushman did not give Berisha any instructions about how to
punch in and out
on August 25.

On Saturday, August 25, Berisha let the contractor in and out of the Company's
parking lot as he
told Cushman he would. Here's what he did. About 8:00 a.m., he opened the locked gate
for the
contractor and let the contractor in to do his work. It took Berisha about ten minutes to
perform this task.
Then, Berisha left the Company's premises. When the contractor was finished doing his
work, he called
Berisha, whereupon Berisha returned to the Company's facility. After he arrived, he let the
contractor out
of the Company's locked parking lot. Once again, it took Berisha about ten minutes to
perform this task.

The Company expected Berisha to clock in and out twice that day (for a total of four
punches).
Berisha did not do that. Instead, he just clocked in and out once (for a total of two
punches). Specifically,
he clocked in at 7:59 a.m. when he arrived to let the contractor in. Then, he clocked out
that day at 4:00
p.m. after he let the contractor out.

While Berisha was clocked in for eight hours that day, there's no question that he did
not work the
entire eight hour period that he was clocked in. Instead, his work was limited to the ten
minutes that it took
each time to let the contractor in and out of the facility.

Although Berisha knew he was clocked in for eight hours that day, he didn't think he
was going
to get paid for eight hours. Instead, he thought that Gadow would manually change

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or adjust the hours on his time card downward to reflect that he got call-in pay for
letting the contractor
in and out of the facility. Specifically, Berisha thought he would get two hours of call-in pay
for the morning
and two hours of call-in pay for the afternoon for a total of four hours of call-in pay for that
day.

That didn't happen though. Instead, the Company paid Berisha for the entire eight
hour period that
he was clocked in.

Berisha was assigned the same task of letting a contractor in and out of the
Company's facility the
following Saturday, September 1. This time, the assignment came from Gadow (rather than
Cushman).
Gadow essentially gave Berisha the same set of instructions that Cushman had given him
previously.
Gadow did not give Berisha any instructions about how to punch in and out on September 1.

On Saturday, September 1, Berisha let a contractor in and out of the Company's
parking lot (just
as he did the previous week). Here's what he did. About 8:00 a.m., he opened the locked
gate for the
contractor and let the contractor in to do his work. It took Berisha about ten minutes to
perform this task.
Then, Berisha left the Company's premises. When the contractor was finished doing his
work, he called
Berisha, whereupon Berisha returned to the Company's facility. After he arrived, he let the
contractor out
of the Company's locked parking lot. Once again, it took Berisha about ten minutes to
perform this task.

The Company expected Berisha to clock in and out twice that day (for a total of four
punches).
Berisha did not do that. Instead, he just clocked in and out once (for a total of two
punches). Specifically,
he clocked in at 7:59 a.m. when he arrived to let the contractor in. Then, he clocked out
that day at 12:45
p.m. after he let the contractor out.

While Berisha was clocked in for 4.75 hours that day, there's no question that he did
not work the
entire 4.75 hour period that he was clocked in. Instead, his work was limited to the ten
minutes that it took
each time to let the contractor in and out of the facility.

Although Berisha knew he was clocked in for 4.75 hours that day, he didn't think he
was going to
get paid for 4.75 hours. Instead, he thought that Gadow would manually change or adjust
the hours on his
time card downward to reflect that he got call-in pay for letting the contractor in and out of
the facility.
Specifically, Berisha thought he would get two hours of call-in pay for the early morning and
two hours of
call-in pay for the later morning for a total of four hours of call-in pay for that day.

That didn't happen though. Instead, the Company paid Berisha for the entire 4.75
hour period that
he was clocked in.

. . .

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Sometime on September 1, Ron Gadow stopped by the facility unannounced and
noticed that the
parking lot gate was unlocked. That surprised him, because the gate was supposed to be
locked. He also
discovered that Berisha was punched in, but was not at work. He decided to investigate
further.

Over the next few days, Gadow reviewed the video surveillance camera footage from
August 25
and September 1 when Berisha let the contractors in and out of the parking lot. The video
footage from
August 25 showed that Berisha came into the facility about 8:00 a.m. that day and let the
contractor in, and
left about ten minutes later. Then, at about 4:00 p.m., Berisha came back and let the
contractor out of the
parking lot. The video footage from September 1 essentially showed the same thing, namely
that Berisha
came into the facility about 8:00 a.m. that day and let the contractor in, and left ten
minutes later. Then,
at about 12:45 p.m., Berisha came back and let the contractor out of the parking lot. Gadow
then checked
Berisha's time cards for August 25 and September 1. As noted above, Berisha's time card
for August 25
showed that he was clocked in from about 8:00 a.m. to 4:00 p.m. Berisha's time card for
September 1
showed that he was clocked in from about 8:00 a.m. to 12:45 p.m. After comparing the
video footage to
the times referenced on the time cards, Gadow could tell that Berisha was not at work for the
times
referenced on his time cards. Thus, Berisha's time cards for August 25 and September 1 did
not accurately
record his actual hours worked on those two dates.

Gadow then reported his findings to BouMatic Executive Vice President of Global
Human
Resources Amy Parkhurst. She then reviewed the video recordings and Berisha's time cards.
After doing
so, she concluded that Berisha's time cards for August 25 and September 1 were inaccurate
in that they
recorded more time on them than Berisha was actually present. What was not apparent to
Parkhurst was
whether there was a plausible explanation for this.

Parkhurst then scheduled an investigatory interview for the morning of September 6.
Prior to the
meeting, per her usual practice, Parkhurst prepared two separate letters to give to the
employee. One was
a discharge letter and the other was a suspension letter. Parkhurst testified that prior to the
meeting, she
was prepared to give Berisha either of the two letters, depending on the explanation he
offered for his
conduct at the upcoming meeting.

About an hour before the meeting was set to start, Parkhurst notified Union Business
Agent Tim
Sullivan in a phone call that she planned to discharge Berisha at the upcoming meeting.
Prior to that,
Gadow advised Union steward Charles Cushman of the same thing (i.e. that Berisha was
going to be
discharged at the upcoming meeting).

The meeting convened as scheduled and was attended by Parkhurst, Company Human
Resource
representative Chris Ascher, Gadow, Berisha and Union Committeeman Steve Ascher.

Some of what happened at the meeting is disputed. According to the three Company
witnesses
who were at the meeting, Parkhurst asked Berisha for an explanation of his actions

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on August 25 and September 1. According to Berisha, that didn't happen, and he was
not asked for his
side of the story. Union Committeeman Steve Ascher, who was at the meeting and testified
at the hearing,
was not asked about what transpired at the meeting. Berisha testified that he initially did not
understand
what he was being accused of because he did not know he had been overpaid for his work on
August 25
and September 1. After he understood that he had been overpaid for his work on August 25
and
September 1 because of his time cards for those days, and that he was being accused of theft
for that
overpayment, his only response was to say that Gadow didn't tell him that he (Berisha) had
to punch out
before he left the plant. Berisha repeated this statement two or three times. Parkhurst
concluded that
Berisha did not offer a plausible or credible explanation for what had happened and, as a
result, his conduct
was intentional (and not accidental). At the end of the meeting, Parkhurst told Berisha he
was terminated
and handed him the following discharge letter:

September 6, 2012

Dear Sami,

Your position is being terminated effective September 6, 2012. Your position is
terminated for theft.

Kind Regards,

Amy Parkhurst /s/

Amy Parkhurst

With that action, the meeting ended. It had lasted about 15 minutes. Berisha was then
escorted to the
maintenance department area by Gadow and Chris Ascher. After Berisha retrieved his
personal
belongings, they escorted him out of the facility.

The Union filed a grievance challenging Berisha's discharge that same day. The
grievance was
appealed to arbitration.

POSITIONS OF THE PARTIES

Union

The Union's position is that the Company did not have just cause to discharge
Berisha
for his
actions on August 25 and September 1, 2012. It acknowledges that Berisha remained
clocked-in on those
two dates when he was not at the plant. However, it's the Union's view that he did not
commit theft (as
alleged by the Company) by doing that. Instead, there was simply a misunderstanding over
his punch
activity on those days that was a good faith mistake on his part. As for the discipline which
the Employer
imposed (i.e. discharge), the Union argues that it was simply unfair "given the absence of
Employer proof
of wrongdoing, the

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absence of an interview with the grievant before a decision to discharge was made,
disparate treatment,
Employer extenuation, and the mitigation of unblemished years of service." It therefore asks
that the
discharge be overturned. It elaborates as follows.

The Union begins by commenting on what it believes is undisputed, and what is
disputed. In its
view, the basic facts are undisputed. In this regard, it acknowledges that Berisha punched in
and out once
on the two days in question, rather than twice as the Company wanted. What the Union
believes is
disputed is the "meaning of and circumstances surrounding the facts." According to the
Union, what the
Employer did here was "mischaracterize" what Berisha did to raise it to the level of theft.
As the Union
sees it, Berisha's time card punch activity should not be considered theft. The Union
contends that the
Employer didn't offer clear and convincing evidence that Berisha either engaged in theft or
intended to
commit theft (via his time card punch activity). The Union avers that while "the Employer
is free to
speculate that Mr. Berisha intentionally omitted time clock punches and intentionally
committed theft. . . it
does not have evidence in support of that speculation." It's the Union's view that Berisha's
time clock
punch activity on both Saturdays was predicated on his experience that his supervisor
(Gadow) had
adjusted his clock time in other Saturday overtime scenarios to conform to the two hour pay
requirement
for call-in pay. According to the Union, Berisha thought that's what would happen here as
well, and he
would get paid for two call-ins for a total of four hours on each Saturday. The Union
maintains that
Berisha's testimony on this point should make it clear that Berisha did not know he was
overpaid for his
work on August 25 and September 1 until he was confronted about it at the September 6
meeting. The
Union also contends that Berisha was not trying to commit theft or steal from the Company
when he stayed
clocked in and omitted an in-out punch on both days. Thus, the Union avers that the intent
to commit theft
is absent. Building on that premise, the Union contends that Berisha made a good faith
mistake when he
omitted the in and out punch in the middle of each day. According to the Union, Berisha's
omitted punches
were just that: omitted punches. The Union opines that omitted punches "do not by
themselves evidence
intention of theft." The Union points out that the Company has a written policy to deal with
omitted
punches. As the Union sees it, the Employer "has, at worst, clear and convincing evidence
of failures to
punch." The Union submits that Berisha's omitted punches "might" be considered
"occurrences" under
the Employer's "Absentee Policy."

Next, the Union argues that even if Berisha did commit workplace misconduct by
remaining
clocked in on the days in question, there was still not just cause to discharge him. In its
briefs, the Union
raises the following contentions: 1) that the penalty which the Employer imposed was not
commensurate
to the offense; 2) that Berisha was not afforded due process; and 3) that Berisha was not
provided equal
treatment. It addresses those contentions in the order just listed.

With regard to the first matter (i.e. the level of discipline which was imposed), the
Union emphasizes
at the outset that prior to this incident, Berisha had a clean disciplinary record and a "high
number of years
of service." As the Union sees it, the Company failed to take the mitigating factors of
Berisha's disciplinary
and employment history into consideration

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when it decided to discharge him. Second, the Union argues that summary discharge
was not appropriate
because on the two days in question, Berisha followed his work instructions "precisely as
they were given."
Building on that, the Union opines that "it is highly inappropriate that the Employer
rewarded his availability
and diligence with a summary discharge penalty." Third, the Union contends that another
reason why the
penalty should be reduced is because of these extenuating circumstances. First, the Union
points to the
statement which HR Administrator Ascher made to an unemployment compensation
investigator about a
conversation Gadow had with Berisha on the Monday after August 25. According to the
Union, this
statement demonstrates "Employer knowledge of the hours Mr. Berisha actually
worked on August 25."
Building on that, the Union submits that "knowledge implies an Employer obligation to
adjust Mr. Berisha's
time clock history before overpayment took place." Second, the Union avers that regardless
of Berisha's
actual time card punches, Gadow was responsible for making "adjustments" to Berisha's time
cards in
order for Berisha to get call-in pay. It notes in this regard that when Berisha worked at the
plant on
weekends doing pipe checks, afterwards Gadow had to "adjust" Berisha's time cards in order
for Berisha
to get call-in pay. Here, though, "for whatever reason", Gadow didn't meet his supervisory
obligations and
modify Berisha's time clock punches for August 25 and September 1. According to the
Union, that
contributed to the misunderstanding on Berisha's August 25 and September 1 punch record.
That, in turn,
created a pretext for overpayment.

With regard to the second matter (i.e. due process), the Union contends that the
Employer failed
to observe its due process obligations. Here's why. It asserts at the outset that the
Employer decided prior
to the September 6 meeting to discharge Berisha. To support that proposition, it notes that
both Sullivan
and Cushman testified that they were informed of Berisha's discharge before the September 6
meeting even
occurred. As the Union sees it, that's problematic, and shows that no matter what Berisha
said at the
upcoming meeting about the facts, the Employer had already made the decision to discharge
him prior to
speaking with him. According to the Union, that not only violated its due process
obligations to the
grievant, but also defied logical rules for gathering evidence before rendering judgment.
Next, the Union
makes several arguments about what happened at the September 6 meeting to show that the
Employer
failed to conduct a fair investigation and give Berisha industrial due process. First, it
characterizes
Parkhurst's testimony about what transpired at the September 6 meeting as "sketchy".
Second, it notes
that Parkhurst brought two letters to the meeting: one was a discharge letter and the other
was for
something less than discharge. The Union notes that the content of the second letter was
never produced.
The Union sees that as significant. Third, the Union contends that the meeting opened with
Parkhurst
handing Berisha his discharge letter. It characterizes that as problematic. Aside from its
timing, the Union
also argues that the reference in that letter to theft "presupposes evidence that would have to
be revealed
in the interview in order for the discharge letter to be valid." The Union submits that
Parkhurst "could not
have known what would be revealed in the meeting, yet she tailored the letter to one narrow
range of
outcome: discharge." Finally, the Union cites Berisha's testimony for the proposition that he
was not
interviewed or given the opportunity to state his case at that meeting. The Union also
characterizes that as
problematic.

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With regard to the third matter (i.e. equal treatment), the Union argues that the
Company did not
provide equal treatment to Berisha. Here's why. First, the Union relies on what happened
in the Dobratz
case. The Union characterizes that case as another "overpayment" case, and notes that the
Employer
imposed no discipline on Dobratz in that case. The Union asserts that the Dobratz case has
many
similarities with Berisha's, but the outcomes were far different. Second, with regard to the
eight prior
discharge cases which the Employer relies on (i.e. what the Union calls the "Employer cited
comparables"),
the Union contends that the Employer assumed similarity in the offense when, in fact, there
was no
similarity. Here's why. The Union characterizes five of them as straightforward theft cases,
two as
deliberate falsification cases, and one for sleeping on the job. In this case though, Berisha's
clock punch
omission was not done to falsify or commit theft. As the Union sees it, Berisha did not steal
anything, nor
did he lie to secure pay to which he was not entitled.

The Union therefore asks that the discharge be overturned and the grievant reinstated
and made
whole. It also asks the arbitrator to retain jurisdiction over the remedy.

Company

The Company's position is that just cause existed for Berisha's discharge. In its
view, Berisha
committed workplace misconduct when he remained clocked-in on August 25 and September
1, 2012
when he was not at the plant. According to the Company, that constituted time card
misrepresentation.
Building on that, the Company maintains that time card misrepresentation constitutes theft
and/or
dishonesty. The Employer maintains that the discipline which it imposes for that type of
misconduct (i.e.
theft and dishonesty) is discharge. It elaborates as follows.

The Company starts by making the following preliminary comments that deal with
the
topic of time
card misrepresentation. First, it notes that every witness who testified acknowledged that
employees are
supposed to accurately record their actual hours worked, and it's never been appropriate or
acceptable
for an employee to record on a time card more than the employee's actual hours worked.
The Company
avers that's what Berisha did though. Second, it characterizes time card misrepresentation as
particularly
offensive because it cheats the employer, betrays the employer's trust, and results in an
unearned windfall
for the employee.

Having given that introduction, the Company next reviews these basic facts. It notes
that on the
two days in question, Berisha was supposed to let a contractor in and out of the Company's
facility on a
Saturday. When he did that, he was supposed to clock in and out twice. He didn't do that.
Instead, he
just clocked in and out once. By doing that, he stayed clocked in for a total of eight hours
on August 25
and 4.75 hours on September 1. That overstated his actual hours worked. Specifically, it
overstated his
actual time worked by more than seven hours on August 25 and four hours on
September 1. That, in turn,
resulted in the Company paying Berisha for wages that he did not earn and to which he was
not entitled.

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The Company argues that the foregoing facts manifest Berisha's "specific intent" to
falsify his time
records. It elaborates as follows. First, it notes that Berisha was aware that employees are
to accurately
record their actual hours worked. Second, it notes that Berisha never asked his supervisor if
he could
depart from the Company's requirement that employees accurately record their actual work
hours with
respect to his work hours on August 25 and September 1. Third, it notes that Berisha never
expressed any
confusion to a supervisor regarding how he was to record his hours on August 25 and
September 1.
Fourth, it notes that prior to September 6, Berisha never told his supervisor that he
overstated his work
hours on August 25 and September 1. Fifth, it notes that Berisha "accepted" the
overpayments that he
received from August 25 and September 1. Sixth, it notes that Berisha never returned the
overpayments
of unearned wages to the Company. Seventh, it asserts that but for Gadow's unscheduled
stop at the plant
and observation that Berisha was punched-in but not at work, the Company "likely would not
have
discovered Berisha's conduct." Finally, the Company avers that at the September 6 meeting,
Berisha's
sole excuse for his conduct was to "blame his supervisor for not catching and correcting his
overstatement
on his time cards of hours worked and/or for not telling him that he had to punch out before
leaving the
plant."

The Company argues that in light of the above-referenced facts, the Union's
contention that
Berisha's conduct was the result of a "good faith mistake" lacks merit. The Company
submits that if the
arbitrator accepts the Union's proposition (that Berisha's conduct was the result of a "good
faith mistake")
that "would prevent an employer from proceeding with discharge in the absence of an
admission by the
employee of a specific intent to steal." According to the Employer, that is not, and never
has been, the
standard of proof acceptable to matters involving employee theft and dishonesty. The
Company also
contends that the Union's claim further "rings hollow" because at the September 6 meeting,
Berisha never
asserted that he mistakenly forgot to punch out on either date. Finally, the Company submits
that when
Berisha claimed at the September 6 meeting that it was Gadow's fault, he was ­ in
essence ­ admitting that
his misconduct in falsifying his time card was intentional.

Next, the Company addresses the penalty that it imposed for that misconduct. In this
portion of
its briefs, it addresses the following Union contentions: 1) that the penalty it imposed was not
commensurate
to the offense; 2) that Berisha was not afforded due process; and 3) that Berisha was not
provided equal
treatment. It addresses those contentions in the order just listed.

With regard to the first matter (i.e. the level of discipline which was imposed), the
Company argues
that discharge was warranted under all the relevant facts and circumstances. Here's why.
First, the
Company notes that it takes violations of Rule 52 (which deal with theft and dishonesty) very
seriously.
So seriously, in fact, that it has a zero tolerance theft policy. It notes in this regard that in at
least a half
dozen instances, it has discharged employees for a single act of theft without any progressive
discipline.
Second, it asserts that Berisha had advance notice of the plant rules, and specifically Rule 52.
Additionally,
he knew that employees are not supposed to steal from the Company. Third, the Company
maintains that
its rules are reasonable work rules. It further submits that it is reasonable for an employer to

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require its employees to record their actual hours worked. Building on both of the
foregoing, the Company
argues it is also reasonable "for an employer to apply a zero tolerance theft policy to
individuals who
overstate their actual hours worked." Fourth, the Employer emphasizes that this is not a
case of an
employee's accidental failure to punch out. Neither Berisha nor the Union made such a
claim at the
September 6 meeting or at the hearing. Instead, what Berisha did was intentional. As the
Company sees
it, Berisha intentionally violated the punch-in rule on two consecutive Saturdays "when it was
unlikely that
anyone would notice." Finally, the Company disputes that Union's assertion that Gadow was
culpable and
contributed to Berisha's conduct. It also contends there are no mitigating circumstances
which should
excuse Berisha's conduct.

With regard to the second matter (i.e. due process), the Employer disputes the
Union's contention
that Berisha was not afforded due process. It contends that he was afforded due process.
Here's why.
While Berisha testified at the hearing that he was not interviewed or given the opportunity to
state his case
at the September 6 hearing, the Employer points out that all three Employer witnesses who
were at that
meeting testified to the contrary (namely, that Parkhurst did give Berisha an opportunity to
tell his side of
the story). The Company also asserts that Berisha's testimony (that he was not given a
chance to tell his
side of the story) conflicts with the testimony of Union Business Agent Sullivan. According
to the
Employer, Sullivan's testimony "reflect[ed] that BouMatic gave the Grievant a fair
opportunity to provide
his side of the story prior to terminating his employment." The Company also disputes the
Union's assertion
that the September 6 meeting opened with Parkhurst handing Berisha his discharge letter.
The Company
avers it did not happen that way. Instead, Parkhurst first gave Berisha a chance to tell his
side of the story,
and then she considered his statements before she ultimately decided to fire him. Finally, the
Employer
argues in the alternative that even if the Union's version of events is accepted, any due
process violation
was non-prejudicial to Berisha.

With regard to the third matter (i.e. disparate treatment), the Employer argues that
the Union's
disparate treatment argument should fail because the Union did not prove that contention. To
support that
premise, the Employer notes that even the Union's own witnesses admitted that the Company
applies Rule
52 across the board in a zero tolerance fashion. It also cites the seven prior instances where
the Employer
felt a bargaining unit employee did something that constituted theft or was dishonest, and the
Employer
summarily fired the employee without first imposing any progressive discipline. As for the
Dobratz matter
which the Union relies on (to prove disparate treatment), the Company distinguishes that case
from this one
on the facts. It notes that in the Dobratz case, Dobratz did not overstate his hours while
Berisha did. Since
the cases are dissimilar in that factual respect, the Company maintains the Dobratz case is of
little probative
value here.

The Employer therefore asks that the grievance be denied and the discharge upheld.

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DISCUSSION

The parties' labor agreement contains what is commonly known as a "just cause"
provision. It
provides that the Company will not discipline or discharge an employee without just cause.
What happened
here is that the grievant was discharged by the Company. The parties stipulated that the
issue to be
decided here is whether there was just cause to terminate the grievant's employment. I
answer that
question in the negative, meaning that I find the Employer did not have just cause to
terminate the grievant's
employment. My rationale follows.

The threshold question is what standard or criteria is going to be used to determine
just cause. The
phrase "just cause" is not defined in the collective bargaining agreement, nor is there
contract language
therein which identifies what the Employer must show to justify the discipline imposed.
Given that
contractual silence, those decisions have been left to the arbitrator. Arbitrators differ on
their manner of
analyzing just cause. While there are many formulations of "just cause", one commonly
accepted approach
consists of addressing these two elements: first, did the employer prove the employee's
misconduct, and
second, assuming the showing of wrongdoing is made, did the employer establish that the
discipline which
it imposed was justified under all the relevant facts and circumstances. That's the approach
I'm going to
apply here.

As just noted, the first part of the just cause analysis being used here requires a
determination of
whether the employer proved the employee's misconduct.

Before I address that point though, I'm first going to make some preliminary
comments which are
intended to put the alleged misconduct in an overall context.

I begin with the following comments about the nature of discipline cases in general.
When
employees are disciplined, one common reason is job performance problems. That was not
the situation
here. Insofar as the record shows, the grievant had no history of job performance problems.
Another
reason that employees receive discipline is because they have an extensive disciplinary
history with an
employer. That is not the case here either. The grievant had a clean work record (meaning
no prior
discipline) until the events involved here unfolded. Thus, this case does not involve a job
performance
problem, nor does it involve a situation where the employee had an extensive disciplinary
history. Rather,
this case just involves the grievant's conduct at work on two successive Saturdays. While
I'll address the
topic in more detail below, it suffices to say here that it involves his time card punch activity
on those days.
According to the Company, what the grievant did (relative to his time card punch activity)
constituted theft.
The Union disputes that assertion.

Next, I'm going to make the following comments about theft cases in general. First,
I begin with
the premise that an employer is entitled to expect honesty on the part of its employees, and
employees have
a basic responsibility not to steal from their employer. Theft is of such a nature that the
mere occurrence
of it gives rise to a general presumption that an

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employer's business is adversely affected. Second, there are a number of offenses that
are considered
immediately and substantially destructive of the employment relationship. These offenses are
often referred
to as the "cardinal" violations. Theft is often at the top of that list. The typical discipline
for committing a
so-called cardinal violation is immediate discharge. Additionally, the overwhelming weight
of arbitral
authority establishes the general proposition that discharge is appropriate for theft without
regard to the
value of the item taken or the length of the employee's service.

Having made those preliminary comments about theft cases in general, I'm now
going
to review
the parties' collective bargaining agreement to see if it specifies something different than the
general rule just
noted. It does not. A review of the article in the collective bargaining agreement that deals
with discipline
and termination (Article XVI) reveals that the parties established some very specific penalties
for some very
specific infractions. Specifically, they agreed that employees who commit certain "minor
offenses" (which
they identified by name) will be disciplined in the typical progressive disciplinary sequence.
However, the
contract provision says nothing about offenses other than "minor offenses". That means it is
silent about
the so-called cardinal offenses or offenses other than "minor offenses". The obvious
inference which can
be drawn from this contractual silence is that the Employer does not have to follow the
typical progressive
disciplinary sequence for so-called cardinal offenses or offenses other than "minor offenses".
Instead, it
can summarily discharge an employee who commits such an offense.

The final point which I'm going to address ­ before I turn to the grievant's
conduct ­ concerns what
the Company has done previously in theft cases. What it has done previously in such cases
can be simply
put: it has taken a very hard line. The following shows this. In more than a half dozen
cases in the last
decade or so, when a bargaining unit employee was caught engaging in a single instance of
what the
Company considered theft, the employee was summarily fired without any progressive
discipline. While
some of those cases can be characterized as traditional theft cases, others were far from
traditional. Take,
for example, the situation where the employee was fired for sleeping on the job. While I
would not
characterize that as a theft case, the Employer did (calling it a theft of time). That was the
Company's call
to make. The overall point is that when considered collectively, the prior discharge cases
stand for the
following propositions. First, historically speaking, the Employer has taken an expansive
view of what
constitutes theft. Second, historically speaking, the Employer has taken a hard line on what
it considers
theft, and has always fired the employee for that conduct. The record does not show a single
instance
where an employee was charged with theft, and the discipline imposed was anything other
than discharge.

Having given that overall context, I'm now going to review the grievant's conduct.
In doing that,
the facts will be interspersed with some relevant background information.

The record shows that Berisha had previously come into the plant on weekends to
check the pipes
and boilers. When he did that work he would clock in, do his work and then clock out. He
made just one
trip to the plant per day to do that work. The work that Berisha did on

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August 25 and September 1 (when he let contractors in and out of the Company's
premises) was different
in this respect. For that work, he had to make two different trips to the plant per day. He'd
never done
that before. Once he arrived at the plant, his work took about ten minutes to perform.
When he arrived,
he clocked in. Then, he left the Company's premises while the contractor did the work he
was hired to
do. Berisha did not clock out when he left the plant. When the contractor was finished, he
called Berisha
who then returned to the plant to let the contractor out. Berisha then clocked out. Thus,
Berisha clocked
in and out once per day on August 25 and September 1 for a total of two punches each day.
By doing
what he did, Berisha remained clocked in for 8 hours on the first Saturday (August 25) and
4.75 hours on
the second Saturday (September 1). There's no question that he did not work the entire
period that he
was clocked in. Instead, as already noted, his work was limited to the ten minutes that it
took him each
time to let the contractor in and out of the facility.

The Company wanted Berisha to clock in and out twice each day (for a total of four
punches).
Specifically, it wanted Berisha to clock in after he arrived to let the contractor in, and then
clock out after
he performed that task. Then, the Company wanted Berisha to clock in again after he
arrived to let the
contractor out, and then to clock out after the contractor left. As noted above, Berisha did
not do that.
Instead, he just punched in and out once.

There's no question that by staying punched in as he did, Berisha overstated his
actual
hours
worked. Specifically, it overstated his actual time worked by more than 7.5 hours on
August 25 and 4
hours on September 1. Said another way, his time card on those two days did not accurately
reflect his
actual hours worked. That was problematic, of course, because the Company ended up
paying Berisha
for the entire time he was clocked in (meaning it paid him for wages he did not earn and to
which he was
not entitled).

The Company contends that by remaining clocked in when he was not at the plant,
that amounted
to time card misrepresentation. Building on that, the Company maintains that time card
misrepresentation
constitutes theft.

There's no dispute that time card misrepresentation can, in certain circumstances,
constitute theft.
The basic question to be answered in this case is whether it constituted theft under the facts
present here.
The Company argues that it did, while the Union disputes that contention.

Based on the rationale which follows, I find that when Berisha punched in and out
once on the days
in question ­ rather than twice as the Company wanted ­ he did not intentionally
falsify his time records and
commit theft. Here's why. The record shows that when Berisha had previously worked
Saturday
overtime, his supervisor (Gadow) would afterwards adjust his time card so that he (Berisha)
was paid for
two hours per the two hour pay requirement for call-in pay. In other words, even though
Berisha did not
work two hours when he checked the pipes on a Saturday, that's what he was ultimately paid
after Gadow
adjusted his time card (no matter what the time card reflected). Berisha testified that he
thought that's what
would happen here as well when he stayed clocked in while he was not at the plant on the
days in

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question, and that he would just get paid two call-ins for a total of four hours on each
Saturday. He further
testified that he did not think he would get paid for the entire time period that he was clocked
in (i.e. 8 hours
on August 25 and 4.75 hours on September 1). While I'll address the matter of "intent"
later in the
discussion, what's noteworthy about this testimony is that it's the only evidence of "intent" in
the record.
Given his prior experience with Saturday overtime scenarios whereby Gadow adjusted his
time card
afterwards so that he would get two hours of call-in pay ­ no matter what the time
card actually reflected
­ Berisha's expectation that the same thing would happen again on August 25 and
September 1 seems
plausible enough. While I'm well aware that Gadow had always adjusted Berisha's time card
upward
before to conform to the two-hour call-in pay requirement, and never downward, the fact that
Gadow had
never adjusted a time card downward before does not mean that it couldn't happen or be
done. In point
of fact, it could have happened and been done in this particular circumstance. That's
because Gadow
knew that Berisha was only at the plant each day for about ten minutes each time to let the
contractor in
and out of the parking lot. As such, Gadow knew that Berisha was only entitled to two
hours call-in pay
for each occurrence, for a total of four hours of call-in pay on each day. In that sense then,
the hours on
Berisha's time cards did not control how much he was to be paid for that day. Rather, what
controlled was
the call-in pay provision which provided for two hours of pay for each call-in. Had Gadow
modified
Berisha's time cards for August 25 and September 1 as he had done previously for Saturday
overtime
work, that would have prevented Berisha from being overpaid for those days.

Next, it would be one thing if the Company had established that Berisha knew he was
overpaid for
his work on the two days in question. However, the Company didn't prove that point.
Berisha's testimony
satisfied me that he did not know he was overpaid for his work on August 25 and September
1 until he was
confronted about it at the September 6 meeting. After he understood that he had, in fact,
been overpaid
for his work on those days because of his time cards, and that he was being accused of theft
for that
overpayment, his only response was to say that Gadow didn't tell him that he (Berisha) had
to punch out
before he left the plant. Initially, I found Berisha's statement to be somewhat puzzling
because both Gadow
and Cushman gave Berisha work instructions about how he was to perform the work in
question. In doing
so, neither of them said anything to him about how he was to punch in and out that day, or
that he was to
punch out when he left the plant. At the September 6 meeting though, in his statement
Berisha did not point
the proverbial finger of blame at Cushman, just Gadow. That makes sense when one
considers that it was
just Gadow, and not Cushman, who was empowered to adjust his time card. Thus, I
interpret Berisha's
sole statement at the September 6 meeting to mean that he was blaming his supervisor
(Gadow) for not
adjusting his time card following the two days in question. When Berisha's statement at the
September 6
meeting is considered in the context previously noted (i.e. that Gadow had always adjusted
Berisha's time
card after he worked on a Saturday so that Berisha was paid call-in pay regardless of what
his time card
actually reflected), it makes more sense than it does if that context is not considered.

Next, the Company points out that at the September 6 meeting, Berisha never
asserted
that he
mistakenly forgot to punch out on either date. That's true; he didn't. As a result, this is not
a case where
Berisha asserts that he simply forgot to clock in and out a second time as

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the Employer wanted. In that sense then, Berisha's actions relative to his time card
were intentional. What
I mean by the word "intentional" in the previous sentence is that when Berisha remained
clocked in when
he was not at the plant, that action on his part was not accidental or a mistake. Rather, it
was an intentional
act on his part.

However, just because Berisha's punches on his time card were intentional, and not a
mistake, that
does not prove that he intended to steal time from the Company. I find that Berisha's
conduct relative to
his time card punch activity on the two days in question was a misunderstanding on his part.
While he
incorrectly thought it was acceptable for him to stay clocked in while he was not at the plant,
he now knows
it is not acceptable workplace conduct. I'm persuaded that at the time the time card punch
activity
occurred though, it was a good faith mistake on Berisha's part.

In so finding, I'm not saying ­ as the Company posits in their brief ­
that
such a finding means that
the standard of proof needed in a theft case is an admission by the employee of a specific
intent to steal.
I don't think I've ever said that in a prior theft case, and in fact, I've sustained the discharge
of many
employees in theft cases based on circumstantial evidence alone without an admission by the
employee of
a specific intent to steal. Thus, an employer does not need to have an admission of theft by
the employee
in order for the discharge to be upheld. In this case, if I was persuaded that this was a
run-of-the-mill time
card misrepresentation case where the employee intended to defraud the Company out of
money, then I'd
have no trouble finding that to be theft. Here, though, I'm simply not persuaded that when
Berisha stayed
clocked in on the two days in question and omitted an out-in punch on both days, that he was
intentionally
trying to cheat or steal time from the Company or commit theft (as the discharge letter said).
Instead, I find
that Berisha made a good faith mistake when he omitted the out and in punches in the middle
of each day.
Once again, my rationale for reaching that conclusion is that Berisha's prior experience with
Saturday
overtime work was that his supervisor would later adjust his time card to conform to the
two-hour call-in
pay requirement, and Berisha thought that that's what would happen here as well. While
Berisha's
assumption turned out to be incorrect because Gadow did not adjust his time cards as he had
done
previously, Berisha's assumption was predicated on his past experience. That assumption,
which I find
plausible under the circumstances, leads me to conclude that Berisha's omitted punches were
just that (i.e.
omitted punches) and nothing more. The Company's contention that Berisha's omitted
punches constituted
theft was not proven. While Berisha's actions relative to his time card punch activity on the
two days in
question can be characterized in a variety of ways, the Company overreacted when it
characterized it as
theft. Accordingly, the Employer did not prove the first element of just cause.

Since the Employer did not prove that Berisha committed the misconduct of theft, it
is
unnecessary
to address the second element of just cause (i.e. whether the employer established that the
discipline it
imposed was justified under all the relevant facts and circumstances). Consequently, no
comment is made
about the parties' arguments with respect to 1) whether the penalty of discharge was
commensurate to the
offense; 2) whether Berisha was afforded due process; and 3) whether Berisha was provided
equal
treatment.

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Based on the foregoing, I find that the Employer did not have just cause to discharge
Berisha.
Accordingly, his discharge is overturned. The Company is directed to reinstate him and
make him whole
for all lost wages and benefits, less any interim earnings. In computing backpay, the
Company can, of
course, offset the amount of money overpaid to Berisha for his work on August 25 and
September 1,
2012.

In light of the above, it is my

AWARD

1. That there was not just cause to terminate the grievant's employment.

2. That since the Employer did not have just cause to terminate the grievant's
employment,
his discharge is overturned. The Company is directed to immediately reinstate Berisha to his
former
position with no loss of seniority and to make him whole for all lost wages and benefits, less
any interim
earnings.

3. The undersigned will retain jurisdiction for at least 60 days from the date of
this award
solely for the purpose of resolving any dispute with respect to the remedy herein.